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In my post at Wonkblog this week, I reviewed several of the findings from political science research that bear on how the formula in Section 4 of the Voting Rights Act could or should be revised in the wake of the Shelby County decision. This includes what Bernard Fraga wrote about here as well as findings from amicus briefs and other relevant analyses. Here’s the conclusion:

Taken together, these findings could easily be leveraged in defense of Section 4, as many have done. At the same time, these facts do not necessarily imply that the exact formula should stay the same in perpetuity. But they do suggest that a new formula could defensibly include many of the areas that were covered by Section 4 of the VRA as of 1964.

In other words, times have changed, but perhaps they haven’t yet changed enough.

We welcome a second post by Patrick Egan on the future of same-sex marriage. His first post is here.

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My post here yesterday raised the question of why the five-justice majority in U.S. v.Windsor—which struck down a section of the Defense of Marriage Act by relying in part on the Constitution’s due process and equal protection principles—declined to issue a “fifty-state ruling” that would have made marriage equality the law of the land. I surmised that one explanation is that the justices sympathetic to gay marriage were reluctant to issue a sweeping ruling for fear of halting the steady momentum that same-sex marriage has enjoyed of late in public opinion and policy. I noted Justice Ruth Bader Ginsburg’s recent public statements asserting that Roe v. Wade had just this sort of deleterious effect on the movement for abortion rights and thus the ruling had gone too far.

The legal patchwork faced by married gay couples in the wake of Windsor now make the state-by-state battles that have been taking place over the right to marriage even more important. In their midst will be sympathetic politicians and judges who nevertheless hesitate to usher in sweeping changes due to the kinds of misgivings expressed by Justice Ginsburg. But a close look at public opinion trends regarding the issue of same-sex marriage suggests that the proper comparison is not the polarizing issue of abortion (and Roe v. Wade), but the once controversial and now settled issue of interracial marriage (and its landmark Supreme Court decision, Loving v. Virginia). Generational trends in public opinion on gay marriage look much more like those on interracial marriage than abortion, and by all indications, Americans are moving toward a national consensus.

We can of course never be absolutely sure about the future trajectory of public opinion. But without getting too technical, one indication that aggregate American attitudes are permanently changing in, say, a liberal direction is when (1) younger generations hold significantly more liberal attitudes than their older counterparts and (2) people’s attitudes do not become more conservative as they age. In the absence of any other stimuli, these two phenomena lead to a gradual change in overall opinion toward a level equal to the attitudes held by the youngest cohort. Furthermore, if people’s attitudes become more liberal as they age, than national opinion will change at an even faster rate.

We can see if this is the case with regard to abortion, interracial marriage and gay marriage with data from questions posed by the magisterial General Social Survey to nationally representative samples of American adults over impressively long spans of time. (For question wording, follow the links in the previous sentence.) The figure below plots opinion trends from the GSS on these three issues by cohorts of Americans born at twenty-year intervals.[1]

The left-hand graph shows that abortion attitudes initially displayed some slight generational differences, with later cohorts holding more liberal opinions than older ones. But these generational differences never resulted in aggregate over-time opinion change, as newer birth cohorts—those born in the 1960s and later—emerged with more conservative attitudes than those of the generation born just beforehand. Furthermore, Americans’ opinions did not become appreciatively more liberal as they aged in any consistent way across generations. The result is the stasis in American opinion on abortion witnessed for the past four decades (as shown in the figure accompanying my previous post).

Compare these trends to those on interracial marriage, displayed in the middle graph. Here, dramatic inter-cohort differences existed in the early 1970s—on the order of 50 percentage points between the earliest and latest generations. These differences persisted over time, contributing to a gradual liberalization of aggregate national opinion this issue. This trend was bolstered by the fact that as Americans of every generation got older, they became more liberal on interracial marriage. By the beginning of the 21st century, a near-universal consensus had emerged that these marriages should be legal—a consensus so strong that the GSS dropped the survey question after 2002.

The final graph depicts the GSS generational trends for the legalization of same-sex marriage. (Although the GSS was one of the first surveys to ask a question about gay marriage in 1988, the question was not included again until 2004.) Here we see notable generational trends coming to the fore, and they look strikingly similar to those on interracial marriage. Over the past decade, opinion on gay marriage has been marked by large inter-cohort differences—once again, a gap reaching as large as about 50 percentage points between the youngest and oldest groups of Americans. Furthermore, if we ignore some bumpiness in the trends due to sampling error, Americans in each generation appear to have become more accepting of gay marriage as they have aged. For example, support among those born in the 1960s and 1970s rose by an astounding 20 percentage points between 2004 and 2012. Similar patterns have been found in other polls conducted over time, in particular those conducted by the Pew Research Center.

All told, our best bet is that attitudes on gay marriage are likely to continue to parallel those on interracial marriage. A point prediction of where the national consensus might eventually lie would be more than 7 out of 10 Americans favoring marriage equality, which is the level of support currently found among the youngest generation.

Over at the New Republic, Nate Cohn takes a less sanguine view. Noting the current opposition to gay marriage among young evangelicals, he foresees continuing resistance to marriage equality among this important segment of the American electorate—and the Republican Party’s coalition. I don’t disagree that religious resistance from some quarters will persist. But what Cohn views as a problematic hurdle to “universal support” for gay marriage in the long term I see as more akin to religious resistance to national consensuses over previously controversial issues such as contraception, the consumption of alcohol, and no-fault divorce. Many deeply religious people see these issues as matters of morality and licentiousness, but in all but a few places they do not have the numbers to affect public policy regarding them.

In U.S. v. Windsor, Justice Anthony Kennedy writes that the “injury and indignity” inflicted by DOMA on lawfully married same-sex couples “violates basic due process and equal protection principles.” He no doubt expresses the sentiment of many judges and politicians who will contend with same-sex marriage in the time to come. When they are deciding just how far they can go in addressing the injuries and indignities faced by gay and lesbian couples, the trends shown here should provide some comfort that their actions are likely to promote—rather than hinder—the slow and steady national momentum toward support for marriage equality.

[1] The irony is not lost on me that the quest for visual clarity necessitates using essentially rainbow-colored graphs for a blog post on gay marriage.

Peter Enns (Cornell) and Patrick Wohlfarth (University of Maryland) have a forthcoming article (ungated) in the Journal of Politics that makes a similar point to the one I made in a blog post earlier today, except that it is based on real data and analysis. Below is the abstract:

In the Supreme Court’s most closely divided cases, one pivotal justice can determine the outcome. Given this fact, judicial scholars have paid substantial attention to the swing justice. This paper makes two theoretical contributions to the study of the swing justice and this justice’s resulting inﬂuence on case outcomes. First, we show that in a substantial number of cases, the justice that casts the pivotal vote is not the median justice on the Court. Second, we argue that the swing justice will typically rely less on attitudinal considerations and more on strategic and legal considerations than the other justices on the Court. The analysis suggests that even among the Court’s most closely divided decisions, which are typically thought to reﬂect the Court’s most ideologically driven outcomes, the pivotal swing vote is signiﬁcantly less likely to reﬂect attitudinal predispositions and more likely to reﬂect strategic considerations, such as the public’s preferences, and case–speciﬁc considerations such as the position advocated by the Solicitor General. The theory and ﬁndings suggest that a failure to consider the unique behavior of a pivotal actor—whether on the Supreme Court or any other decision making body—can lead to incorrect conclusions about the determinants of policy outputs.

The Court may be correct in its implicit judgment that Congress chose the path of least resistance in reauthorizing section 4(b) without making substantial revisions. But that is how electorally accountable institutions operate. To suggest that Congress should have done more is naive at best, and the Court fails to offer a remedy that reflects the realities of lawmaking.

That is Scott Adler and John Wilkerson on the Shelby County decision. More here.

It has been rather challenging for legal scholars to portray the Supreme Court opinions of the past few days as somehow following logically from precedent or even from the past judgments of individual justices. As University of Chicago law professor Eric Posner puts it on Slate:

[..] trying to find a jurisprudential explanation for this opinion, like the opinions in Fisher and Shelby Country, is a fool’s errand. Same-sex marriage is advancing while affirmative action is receding because that’s what the relevant majorities of the justices care about.

This interpretation fits with what political scientists call the “attitudinal model” of Supreme Court decision making: judges decide cases according to their personal policy preferences even if they cloak their motivations in legal language. The point is not that the law doesn’t matter but that especially on value laden cases with ambiguous precedents justices often manage to find legal interpretations that fit their personal belief systems.

There is an intriguing alternative, or perhaps complementary, explanation: that gay rights are advancing while affirmative action is receding in the Court because that’s what the American public wants. This argument is implied by Patrick Egan’s terrific post here yesterday.[1]

But why would the Court respond to public opinion? Judges are not elected by the public. Isn’t the purpose of a counter-majoritarian institution precisely that it does not follow swings in public mood? Still, political scientists haveamassed an impressive array of evidence in favor of the hypothesis that the Court follows changes in public opinion. But why?

This is a guest post by political scientist Bernard Fraga, whose work focuses on the intersection of race and party in congressional elections. I solicited this directly from him, and we’re grateful for his quick response.

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On Wednesday the Supreme Court struck down a key provision of the Voting Rights Act that determined which jurisdictions received increased federal oversight of their election procedures. Prior to the ruling in Shelby County v. Holder(summary here), states and counties with low voter turnout or registration during the 1960s, and a history of discriminatory election practices, needed to receive “preclearance” prior to changing any laws or regulations dealing with the electoral process. As the court warned in Northwest Austin Municipal Util. Dist. No. One v. Holder(2009), use of a coverage formula based on election results from 40 years ago “raise[s] serious constitutional questions,” culminating in the present ruling’s call for Congress to “fashion a coverage formula grounded in current conditions” rather than “40-year-old facts having no logical relation to the present day.”

In this post, I address the “present day” turnout situation, making use of a nationwide individual-level database of turnout records, compiled by Catalist, LLC. Focusing on the gap between African-American and non-Hispanic white turnout rates, I’ll show that recent state-level election results appear to back up the Court’s assertion that black voter turnout is often not substantially lower, relative to whites, in southern states. However, the narrow focus on state-level figures hides the fact that higher black voter turnout may actually be associated with VRA-mandated redistricting, instead of a robust sea-change in Southern politics.

First, do covered jurisdictions in the South still display the same pattern of low African-American participation that appeared in the 1960s? In most Southern states, citizens are asked to indicate their race when they register to vote. Outside of the South, where race is not on the registration form, Catalist estimates the race of every registrant via census block demographic data and name matching. (I discuss the validity of these estimates here.) In the figure below, I subtract the black voter turnout rate from the non-Hispanic white voter turnout rate for the 2006, 2008, 2010, and 2012 general elections. States subject to the coverage formula struck down in Shelby have borders outlined in blue. (Though I have not indicated them, portions of six other states, such as North Carolina, are also covered via the coverage formula struck by the court. A full listing is here.)

Two patterns are clear. First, the black-white turnout gap was substantially wider in recent midterm elections, relative to presidential elections. Nationwide, African-American voter turnout was approximately 15 percentage points below that of the non-Hispanic white population in 2006, and 12 points below white turnout in 2010. In 2008 and 2012, however, black turnout was within 5 percentage points of white turnout. Despite recentgains, there is not consistent racial parity in voter turnout.

The second pattern fits the majority’s conclusions in Shelby. In presidential election years, more than half of southern states subject to preclearance had black voter turnout equal to or exceeding that of whites, and with a smaller gap than many states in the North and Midwest. In midterms, while black turnout also lagged white turnout in the South, disparities were no more severe than much of the rest of the country.

So far, it seems that the Court had an important point about the relevance of “40-year-old facts” to today’s political reality. Yet, when we break down black and white turnout in the 2010 midterm by county, we see significant geographic variation in the black-white turnout gap within the South that points to the pitfalls of looking only at states.

As demographers would quickly notice, many of the southern counties with the smallest (or even a positive) black-white turnout gap are also part of the Black Belt region. These areas are also comprised of congressional and state legislative districts with a larger-than-average proportion of African-Americans:

In the figure above, congressional districts with a black citizen voting-age population above the average for southern states (15%) are shaded in green, while those below the average are shaded in red. While not perfectly aligned in the figures presented here, nationwide evidence also suggests that black and Latino turnout is higher in majority-minority districts.

In her dissenting opinion, Justice Ginsburg critiques the majority, stating “[i]n the Court’s view, the very success of Section 5 of the Voting Rights Act demands its dormancy.” When focusing on statewide measures of voter turnout in recent elections, we do indeed see that whole states subject to preclearance are no longer particularly egregious examples of low black participation. Taking a more detailed look at the South, though, suggests that VRA-mandated redistricting, now threatened by the Shelby decision (though perhaps not for some time), likely contributes to the high rates of black voter turnout cited by the majority. As opposed to a rosy “[t]hings have changed in the South” story, as cited by the majority, non-turnoutmetrics also document the continuing prominence of racial bias as a factor in Southern politics.

When combined with even a slightly deeper analysis of turnout, as presented above, it is clear that the majority’s own narrow formula for “success” could miss the very conditions the Voting Rights Act sought to remedy.

While Chief Justice John Roberts cited data on voter registration and voter turnout in the majority opinion that struck down Section 4, explicit vote denial is no longer the central focus of a majority of Department of Justice preclearance reviews. Rather, the focus today is on what Congress and the Courts have called second generation discrimination in which minority votes are diluted and made less effective than those cast by Whites. In their decision Tuesday, the majority ignored evidence of vote dilution, even as extensive social science research documents high rates of voting inequality faced by African Americans and Latinos in jurisdictions fully covered by Section 5 of the Voting Rights Act.

After studying census records from 2000 to 2010, voting records from 2000 to 2012, public opinion data, lawsuits about the Voting Rights Act and all relevant state legislation in recent years, Crayton, Barreto and the other scholars strongly disagree.

Their research found “clear and statistically significant evidence” that discrimination is still widespread today, though often in different forms, and even remains more widespread in Section 5-covered jurisdictions than elsewhere.

That is political scientist Matt Barreto. More here. See also my earlier post and links therein.

Recent speculation about the Supreme Court’s rulings on the gay rights cases Hollingsworth et al. v. Perry et al., and US v. Windsor et al., has led some to warn of backlash—whereby a favorable gay rights ruling might lead to a surge of anti-gay opinion, which would ultimately set back the march toward equality. Justice Ruth Bader Ginsburg, a liberal stalwart, recently countenanced these views when discussing the fight over abortion. Our research suggests that concerns about public opinion backlash on gay marriage are unfounded.

For decades, those invoking backlash have told traditionally disadvantaged groups that they should not press their claims. Backlash is typically described as a reaction to threats or changes to the status quo by those seeking to maintain existing power arrangements. A variety of scholars and pundits have considered backlash in the context of policies advancing the status of Latinos, women , and African Americans among others. Even among those interested in gay rights, claims of backlash are not unique to the question of gay marriage.

With respect to gay rights, backlash might be precipitated by the policies produced by institutions like the legislature, or the Court, or by non-policy actions such as the election of members of a traditionally marginalized group. To date, however, empirical evidence of opinion backlash in response to court cases, is anecdotal. This leads to the question: Does opinion backlash occur?

We investigated this question by conducting on-line survey experiments in which people were asked to react to a state Supreme Court ruling legalizing gay marriage. The experiment was conducted just before the Supreme Court oral arguments in the Perry and Windsor cases. We randomly assigned people to see vignettes containing a fictitious news story about gay marriage in Oregon being legalized by the state court, a story about gay marriage being legalized by the state legislature, a story about a gay pride parade, or a story about a unrelated issue (gun control policy). After seeing one of these stories, people were asked to rate gays and lesbians on a “feeling thermometer” where 100 indicates very warm feelings and 0 very cool feelings. If backlash occurs, we should see that opinions of gays become less favorable for each group that read about gay marriage or gay rights, relative to the group that read about gun control policy. Backlash might be stronger among groups that past research suggests might be more likely to experience backlash—Evangelical Christians and those dissatisfied with the country’s direction. Here are the changes in feelings toward gays for each version of the experiment (relative to those who saw the gun control story):

We find no evidence of backlash in any of the groups that saw a story related to gay marriage or gay rights (or in all of these groups combined). This was true among all respondents, among evangelicals, and among those dissatisfied with the direction of the country. Why did opinions change so little? One possibility is that a policy made in Oregon, the setting for each of our vignettes, did not provide the degree of threat to the status quo necessary to create a backlash.

To address this possibility, we interviewed a separate sample of people after oral arguments in the Perry and Windsor cases, also having them read the gun control story so that they would be comparable to the group who read this story but were interviewed before the oral arguments. By making the expansion of gay rights salient, the Court’s hearings may have provided a more significant threat to the status quo. We estimated backlash by comparing thermometer ratings of gays among those interviewed before and after the hearings. Backlash would be indicated by differences in Figure 2 that are large and negative.

Once again, our results are entirely inconsistent with the predictions of backlash. In fact, contrary to theories of backlash, the public as a whole appears to have become more favorably disposed toward gays and lesbians.

These results appear to undermine a central argument made by those who suggest that advocates of gay rights should “go slow” in pushing for gay rights and especially marriage equality. While there may be costs associated with pushing for equal rights for gays and lesbians, such as the creation of negative precedents that may result from court rulings that go against gay rights, those costs seem unlikely to come in the form of public opinion backlash.

It is ironic that almost exactly 50 years after Martin Luther King’s Letter from Birmingham Jail—a response to Alabama clergy who exhorted blacks to wait for the courts to grant them civil rights—some today suggest the courts themselves should take it slow. While it is possible that other forms of backlash may occur, our evidence suggests that opinion backlash—the primary basis for many of these claims—is not a good reason to do so.

So why could the Obama administration collect data on – as it appears – pretty much every phone call you make? The answer seems to be a lesson in legislative drafting – since it resides in the wide grant of power Congress delegated to the administration in the Patriot Act (sorry, the USA PATRIOT Act: “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”) originally passed in October 2001. (This is before we get to PRISM, which appears to operate using different legal authority. Sorry, it’s hard to keep up… but here, too, it appears that Congress – though possibly unwittingly – granted new powers to the president.)

The relevant piece of the Patriot Act (P.L. 107-56) is Section 215, entitled “business records,” which amended the Foreign Intelligence Surveillance Act (FISA) of 1978 to include the following text:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

The investigation shall “be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order)” – this E.O. deals with intelligence gathering, and basically says it has to be legal (which the Patriot Act says it is, so…) To be approved by the FISA court, the application need only “specify that the records concerned are sought for an authorized investigation conducted …to protect against international terrorism or clandestine intelligence activities.” If that’s done—and that’s a pretty easy bar to clear, given a Justice Department willing to sign off on such a broad program—then the judge would seem to have little discretion.

Nor does it seem likely that the program, at least as publicly described (e.g. in the court order, see here), violates the Fourth Amendment. This seems odd given that amendment’s ban on “unreasonable” search and seizure procedures. But as it happens the Supreme Court ruled in Smith v. Maryland back in 1979 – in a majority opinion that brought together justices as disparate as Harry Blackmun and William Rehnquist – that the kinds of records tracked in the present case are not subject to the 4th amendment (thanks to Harry Pohlman for pointing this out). Their reasoning was that you have “no reasonable expectation of privacy” when it comes to the numbers you dial, since you know that the phone company keeps track of such information. In any case, the majority held, “even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not one that society is prepared to recognize as reasonable. This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

One could argue that in the cell phone age the conception of location and numeric data is quite different (we are as far removed from 1979 as 1979 was from operator-controlled party lines). But so far as I know, Smith is still good law.

So, we can complain about the policy choice, but the lack of limits in the law’s language does constitute a policy choice, not an administration “going rogue” outside the law. (Whether you should read the law the way the administration wants to, you could.) We could blame the rushed process by which the act was passed in October 2001, given the stress (and yes, terror) of the time, but since then this text has been renewed at least three times (in 2006, 2010, and 2011), and there has been quite a lot of argumentation over Section 215 (a useful background piece for the ‘11 debate is here.) As John pointed out below, Congress has signed off on this language quite explicitly.

Just for fun, you can read Senator Obama’s speech on the 2006 reauthorization here (“I will be supporting the Patriot Act compromise. But I urge my colleagues to continue working on ways to improve the civil liberties protections in the Patriot Act after it is reauthorized.”) President Obama, once in office, was rather less concerned with said improvement; AG Eric Holder said in 2011 that the administration strongly supported extending Section 215 “for as long as we possibly can.” That turned out to be to 2015 – though current events may change that calculation.